ADMINISTRATIVE LAW II – PIL 512

LOCUS STANDI

The term Locus Standi means the legal capacity to institute, initiate or commence proceedings in a court of law which is used interchangeably with terms like “standing” and “title to sue.” It is also the right to be heard or the right of competence to initiate a matter or suit or proceedings in a court for redress or assertion of a right enforceable at law. See Owodunni v. Reg. Trustees of CCC (2000) 2 WRN 29; Sunday v. INEC (2008) 33 WRN 141 at 164.

The term Locus Standi means the legal capacity to institute proceedings in a court of law which is used interchangeably with terms like “standing” and “title to sue.” It is also the right or competence to initiate a matter or suit or proceedings in a court for redress or assertion of a right enforceable at law. See Owodunni v. Reg. Trustees of CCC (2000) 2 WRN 29; Sunday v. INEC (2008) 33 WRN 141 at 164.

This concept is particularly relevant to administrative law although it also has importance in relation to some aspects of Constitutional Law and H u m a n R i g h t s . I t f o c u s e s o n t h e q u e s t i o n w h e t h e r a n Applicant/Claimant/Plaintiff/Petitioner/Party instituting or originating an action for remedies or judicial review is entitled to invoke the jurisdiction of the court.

Generally, it is treated as a threshold or fundamental issue that must be resolved in favour of the Applicant/Claimant/Plaintiff/Petitioner/Party for the jurisdiction of the court to be invoked. It must be noted that the approach of the courts in resolving the question of locus standi varies from country to country and case to case.

Locus standi has its root in common law as developed in England although some had argued that it had developed under both English and Roman-Dutch law among others. The requirements for locus standi therefore, differ according to the remedy sought.

The Applicant must have an interest in the subject matter of the litigation in the sense of being adversely affected personally by the alleged wrong and that his right has been infringed upon as it will not suffice for the Plaintiff/Applicant to allege that the Defendant has infringed the right of someone else, or that the Defendant is acting contrary to the law and therefore, it is in the public interest that the court grants relief(s) sought. See Massachusetts v. Mellon (1923) 262 US 447 448.

The Locus standi rule was developed primarily to protect the courts from being used as a playground by professional litigants, meddlesome interlopers and busy bodies who in actual fact, has no stake or interest in the subject matter of a suit. Invariably, this common law position made the rule restrictive as it was confusing for each remedy to prescribe its own standing requirements which then led to its criticism.

Hence in 1978, England reformed its procedural rules as prerogative remedies and declaration could be obtained under a single procedure with a unified standing requirement of “sufficient interest” as held in the case of R v. I.R.C. ex parte National Federation of Self-Employed and Small Businesses.

LOCUS STANDI AND JUSTICIABILITY

The English reform was not immediately followed in Nigeria. However, the Nigerian courts have substantially moved away from the strict legal interest test towards a more liberal test of sufficient interest in the subject matter since S. 6(6)(b) of the 1999 Constitution, pertaining to jurisdiction and justiciability has meant that certain interpretative peculiarities were initially imported into the locus standi test in Nigeria. See the case of Gani Fawehinmi v. Akilu. Compare with the cases of Olawoyin v. A-G Nortthern Region of Nigeria (1961) 2 SCNLR 5 at 10; Onyia v. Governor in Council (1961) 2 All NLR 174; Gamioba v. Esezi (1961) All NLR 584. Also see Ss. 6(6), 36 and 46(1) of the 1999 Constitution.

The modern approach of the locus standi rule was established in the case of Abraham Adesanya v. President, Federal Republic of Nigeria (1981) 5 SC 112.

The Supreme Court has been lauded in liberalizing locus standi in constitutional cases for the enforcement of public rights which also includes instituting of criminal proceeding under the criminal Code and Criminal Procedure Law although not in total as the liberalized approach failed to displace the Supreme Courts earlier approach in the Adesanya case and has been deconstructed in subsequent cases like Fawehinmi v. IGP. However, the test of the Adesanya’s case has become a mantra for the determination of locus standi in a legion of cases decided by the Supreme Court which has been followed by the Court of Appeal and the other lower courts.

In the case of Taiwo v. Adegbooro (2011) 11 NWLR (Pt. 1259) 562 at 579-580, the test was further reduced to a formula:(a) The action must be justiciable;(b) There must be a dispute between the parties.

In K.T. & Ind. Plc v. The Tug Boat “M/V Japaul B” justiciable interest was held to mean a cause of complaint; the civil right or obligation fit for determination by a court of law; and a dispute inrespect of which a court is entitled to invoke its judicial powers to determine under S. 6(6)(b) of the 1999 Constitution.

Thus, locus standi and justiciabil ity of an application bother on competency of a claim or application, and it does not fall within the discretionary power of the courts. See Dodo v. EFCC (2013) 1 NWLR (Pt. 1336) 468 at 516 9CA.

THE SUFFICIENT INTEREST TEST

This simply mean that the Plaintiff/Applicant has sufficient legal interest to file such action and not whether the action was bound to fail in any event.

Like most Commonwealth countries therefore, Nigeria has adopted the test of “sufficient interest” in interpreting the locus standi rule.

See Chijuka v. Maduewesi (2011) 16 NWLR (Pt. 1272) 181 at 205; Adetona v. Zenith Int’l Bank Plc (2011) NWLR (Pt. 1279) 627 at 654-655; ASUU v. BPE (2010) 14 NWLR (Pt. 1374) 398 at 415; F.U.T.A. Yola v. A.S.U.U. (2013) 1 NWLR (Pt. 1335) 249 at 277; Centre for Oil Pollution Watch NNPC (2013) 15 NWLR (Pt. 1378) 556 at 582 and Ofole v. Obiorah (2015) 18 WRN 138 at 154-155.

LOCUS STANDI AND PUBLIC INTEREST LITIGATION

Public Interest litigation (otherwise known as Action Popularis) is one in which a high court allows volunteers like lawyers, activists, NGOs or citizen petitioners to bring an action or a case on behalf on behalf of some victimized group without sufficient means or access to legal services.

This is based on the premise that the main aim or objective of public law is to keep public bodies within their power on the assumption that citizens should be enabled to vindicate the public interest without showing personal harm over and above that of the general community. See Fawehinmi v. Akilu (supra). See also Alhaji Salihu Wukari Sambo v. Capt. Yahaya Douglas Ndatse (Rtd.) (2013) LPELR-20857 (CA).

LOCUS STANDI AND JURISDICTION

The Supreme Court in the case of Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 at 176 per Adekeye JSC, it was articulated that locus standi and jurisdiction are interwoven in that locus standi goes to affect the jurisdiction of the court before which an action or a matter in brought. Thus, where there is no locus standi to file an action, the court cannot properly assume jurisdiction to entertain it as it is a condition precedent to the determination of a case on the merit.

Being an issue of jurisdiction that must be fundamentally established before a court assumes jurisdiction over such a matter, locus standi can be raised at any stage or level of proceedings in a suit (even on appeal at the Court of Appeal or Supreme Court) by any party without leave of court or by the court itself suo motu. See Owodunni v. Registered Trustees of CCC (2000) 6 SC Pt. III) 60.

REMEDIES

This fundamental concept on right and remedies (both in English

and Nigerian Law) is encapsulated in the Latin maxim ubi jus ibi

remedium wchich simply means where there is a right, there is a

remedy. Remedies have been classified into two:

(i) Administrative (Non- Judicial) Remedies; and

(ii) Judicial Remedies.

(A) Administrative Remedies are non-judicial in nature. These are processes

through which the administrative authorities correct, remedy or rectify a

wrong done or a right of an aggrieved person that has been violated, by

either restoring the right or make reparation for the injury or loss already

occasioned or suffered by the aggrieved person as a result of the act or

omission of the administrative authority.

Administrative Remedies as the name implies, require the institution of

legal action or claim before a court of competent jurisdiction for the grant

of any of the administrative remedies that consist of prerogative orders,

equitable and common law remedies.

Administrative Remedies or Non-Judicial Remedies are by nature directed

towards the administration, its machineries or institutions that can be used as

an intervention mechanism to secure the redress or a wrong done to an

aggrieved person without resorting to the courts’ administration of justice

system. When successfully pursued, they are often more expeditious and

inexpensive when compared to the judicial remedies but their unpredictability

and non-recognition by law for the computation of time for limitation of

statutes poses a great challenge. However, in Engineer G. F. C. Ezeani v. Nigerian

Railway Corporation (2013) LPELR-22065 CA the Court of Appeal considered the

issue of continuous effect of injury and computed time accordingly.

Take Notice that an aggrieved person pursuing administrative remedies must

keep sight of Statute of Limitation that has the legal effect of extinguishing

his/her legal right if the legal action is not instituted within the limitation period.

The Types or Forms of Administrative Remedies include the following:

(i) Domestic/Internal Procedures: Where the domestic or local remedies are

substantively and procedurally by statute, the courts have held that the

neglect to exhaust all the remedies available to the disciplined person at the

domestic forum will deny him/her the accrual of a cause of action in court

until he/she has complied with the requirements of the enabling statute.

This also includes giving of Pre-Action Notices to the proposed Defendant.

See Nigerian Communications Commission v. MTN Nig. Communications Ltd.

(2008) 7 NWLR (Pt. 1086) 229 CA; Agienoji v. COP (2006) 4 FWLR (Pt. 345) 7412

at 7432; Ayeni v. Obasa (2011) 23 WRN 103 at 136 CA. For Pre-Action Notice

see the cases of Engr. Abraham Adebisi Gbadamosi v. Nigerian Railway

Corporation (2006) LPELR-11668 CA; Katsina Local Authority v. Alhaji B.

Makudawa (1971) 1 NMLR 100 at 107.

(ii) Appeals and Petitions;

(iii) Tribunals and Inquiries;

(iv) National Human Rights Commission. See NHRC Act, No. 22 of 1995 later

amended by the NARC (Amendment) Act, 2010.

(v) Complaints and Petitions to the Legislature. See particularly the

investigative powers conferred on the National Assembly in S. 88 of the

1999 Constitution;

(vi) Code of Conduct Bureau. See Paragraph 3 Part I, Third Schedule of the

1999 Constitution; also see Ss. 3, 20 – 25 of the CCT Act. Notice that

where there is a conflict between the provisions of the Constitution and

that of the Act, that of the Constitution will prevail.

(vii) Ombudsman. See S. 315(5)(b) of the 1999 Constitution; the limitation of

its powers in S. 5(2) and duties in Ss. 6 – 8.

JUDICIAL REMEDIES

These are remedies that were developed by the courts. In Nigeria, these are

granted under the application for judicial review under the High Court (Civil

Procedure) Rules; these are:

a) Prerogative Orders of Certiorari and Prohibition: Certiorari is an order

directing the judgment, orders, decisions or other proceedings of an inferior

court/tribunal/public authority which was made without or in excess of

jurisdiction or even illegally to be moved to a high court. The objective is to

enable the h igh court examine the proceedings in the infer ior

court/tribunal/public authority thereby, determining whether its order or

decision has been made validly or legally within its jurisdiction.

The writ is designed to check the excesses and arbitrary decisions of inferior courts.

Where the order or decision is found to be ultra vires, certiorari will be issued to

quash it. It also serves as a means of controlling unlawful exercise of power by

setting it aside due to excess or abuse of power. See M.H.W.U.N. v. Minister of

Labour and Productivity (2005) 17 NWLR 120 at 150 CA.

The grounds under which this type of order can be granted include:

1. In excess of or without jurisdiction or authority;

2. In breach of natural justice;

3. In error of law which is manifest on the face of the records of the lower court;

4. Under the influence of fraud or perjured evidence and the fraud or perjury

was instrumental to the decision or action taken by the lower court. See

Eleazer Okoli v. Federick Nwafor & Ors. (2006) 4 FWLR 6474 at 6478 CA;

see Nwankwo v. Shitta-Bey (1999) 10 NWLR (Pt. 621) 75 at 83 – 85,

Onwumechili v. Akintemi (1985) 3 NWLR (Pt. 12) 504 at 519 CA; Wemabod

Estates Ltd. v. Joyland Ltd. (2001) 18 NWLR (Pt. 744) 22 at 39 – 40 CA.

Prohibition on the other hand, operates differently from Certiorari. While certiorari

operates after the unlawful or illegal event/proceeding is already completed,

Prohibition is anticipatory in its effect as it is issued to prevent unlawful action or

proceeding from being taken or completed. See Okupe v. FBIR (1974) 4 SC 69 at 93.

Prohibition and Certiorari were developed together as part of the system of

control imposed by the King’s Bench which later developed into part of the

regular mechanism of judicial control both of inferior courts or tribunals and of

administrative or executive authorities generally. Grounds upon which

prohibition can be sought are almost the same with certiorari and these include:

1. In excess of or without jurisdiction or authority;

2. In breach of natural justice;

3. Without being properly constituted;

4. In error of law which is manifest on the face of the records of the lower

court.

(b) Injunction : Injunction is granted to stop or restrain an act from being

carried out. It is an extraordinary remedy which is used in special cases

where preservation of status quo or the res or taking some actions is

required for justice and an equitable remedy. It is prohibitory in nature,

given when monetary compensation will not be an effective remedy and

granted at the discretion of the court. Types of this remedy include (i)

Interim or Ex parte Injunction which is granted to maintain the status quo

and in cases of real emergency; the other Party to the suit is not put on

notice here; (ii) Interlocutory Injunction is also granted to maintain the

status quo until the final determination of the case; (iii) Perpetual Injunc-

tion which is granted at the end of the case; that is during the final

judgment. It prohibits in perpetuity the threatened act or any such future

act; (iv) Mandatory or Positive Injunction which is granted to compel a

party to do a specific thing or action.

Take Notice that an Injunction is not granted for a completed act until the final

determination of the substantive suit and any violation thereof will result in

enforcement of committal proceedings for contempt of Court. However, an

Injunction will not be granted if it will culminate in illegality or if the Applicant’s

case is weak or lack merit.

(c) Habeas Corpus : This is a Latin maxim meaning “you have the body.” It is

a writ used to secure the release of a person from wrongful detention.

When it is issued, it means the authority holding or incarcerating the

person should produce him in court in order for the court to determine

the legality or otherwise of his arrest. If the arrest is found to be lawful,

an order would be given to return the person to prison but if not, an

order of release will be issued immediately. This is further guaranteed

under Section 35 of the 1999 Constitution which makes provisions for

Right of Liberty against unlawful detention and false imprisonment.

(d) Declaration : This declares rights or positions of the Parties. It is an

equitable remedy which is granted at the discretion of the Court. When

given by the Court, it is known as declaratory judgment. A declaratory

judgment by merely states existing legal situations or positions. It also

declare rights between individuals and government, and also between

governments. It is usually sought as part of the other remedies sought by

a Party in an action. It does not provide for an order of enforcement but

when infringed upon, actions can be instituted on it. A declaration

therefore, is often regarded as the most appropriate form of relief in the

interpretation of legislation and documents, and also a challenge to

executive, ministerial and administrative actions.

(e) Writ of Mandamus : Mandamus in English means Mandatory. This

remedy compels an individual to do certain lawful acts or a public

authority to perform a public duty, the performance of which the

applicant has a sufficient legal interest.

In issuing this order, the court must make sure that such authority has

the power to do that which has been ordered and which is not contrary

to public policy.

(f) Damages : Damages is now added as one of the reliefs under Judicial

Review procedure and it has been described as being compensatory in

nature. The basic object of an award of damages is to compensate the

Claimant for the damage, loss, harm or injury suffered by him. The

guiding principle here is restitution in integrum.